TASTY BAKING COMPANY SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2005
Exhibit
99.5
Exhibit
A
TASTY
BAKING COMPANY
AMENDED
AND RESTATED
EFFECTIVE
AS OF JANUARY 1, 2005
THIS
AMENDED AND RESTATED AGREEMENT, entered into as of the ____ day of _________,
2006, by and between Tasty Baking Company, a Pennsylvania corporation
(hereinafter referred to as “Employer”) and Xxxxxxx X. Xxxxx (hereinafter
referred to as “Employee”).
W
I T N
E S S E T H:
WHEREAS,
the Employer and the Employee entered into a Supplemental Executive Retirement
Plan Agreement (the “Agreement”) as of October 7, 2002, and amended and restated
the Agreement as of August 19, 2004; and
WHEREAS,
the Employer and the Employee desire to amend the Agreement so that it conforms
to the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby amend
and
restate the Agreement, effective as of January 1, 2005, as follows:
ARTICLE
I:
CONTRIBUTIONS
1. Initial
Contribution Credit.
Effective as of September 30, 2004, the Employer shall credit an amount equal
to
$172,500 to an unfunded notional account on behalf of the Employee.
2. Subsequent
Contribution Credits.
As of
the end of each month subsequent to September 30, 2004, the Employer shall
credit a contribution to such notional account on behalf of the Employee in
an
amount equal to 39% of the base salary and bonus paid by the Employer to the
Employee during such month. In no event shall any contributions be credited
to
such notional account on behalf of the Employee after the Employee attains
age
67.
3. Interest
Credit.
As of
the end of each month subsequent to September 30, 2004, the Employer shall
credit interest to such notional account an amount equal to the product of
(a)
1/12 of the interest crediting rate for the calendar year and (b) the Employee’s
account balance at the beginning of the month.
4. Interest
Crediting Rate.
The
interest-crediting rate for a calendar year will be Xxxxx’x Xx rate for
corporate bonds as of the last business day preceding the beginning of the
calendar year.
5. Change
of Control.
In the
event the Employer undergoes a “change of control,” as defined in the Employee’s
Employment Agreement with the Employer, the Employer guarantees that three
additional annual contribution credits, as determined under paragraph 2, above
based upon the Employee’s base salary and bonus for the calendar year
immediately prior to the calendar year in which he terminates employment
following a change of control, shall be credited to the Employee’s notional
account if and only to the extent that (a) Employee does not continue to perform
service for the Employer for at least 36 months after the change of control
and
(b) Employee does not receive at least 36 months of contribution credits for
such service under paragraph 2, above. In no event shall the guarantee of
additional annual contribution credits under this paragraph be applicable for
any calendar year that the Employee continues to perform service for the
Employer after the year in which the Employee attains age 62.
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6. Benefits
Under this Agreement.
Benefits
shall be paid to the Employee pursuant to the notional account established
by
the Employer for the benefit of the Employee in accordance with this Agreement
and shall be in lieu of and not supplementary to the benefits accrued by the
Employee under the terms of this Agreement as in effect prior to August 19,
2004.
ARTICLE
II: PAYMENT
OF BENEFITS
1. Retirement.
In the
event that Employee separates from service with the Employer on or after age
57,
his entire notional account balance, valued as of the end of the month preceding
payment, shall be paid to him in a lump sum on the first business day of the
month following the date of his separation from service.
2. Disability.
In the
event that Employee separates from service with the Employer as a result of
being “totally disabled,” within the meaning of and determined under the
Employer’s long-term disability program, his entire notional account balance,
valued as of the end of the month preceding payment, shall be paid to him in
a
lump sum on the first business day of the month following the date of the
determination that he is totally disabled.
3. Death.
In the
event that Employee dies prior to receiving any benefits pursuant to this
Agreement, his entire notional account balance, valued as of the end of the
month preceding payment, shall be paid in a lump sum to his surviving spouse
on
the first business day of the month following the date of his death. In the
event the Employee is unmarried on the date of his death, no payment shall
be
due under this Agreement.
4. Other
Termination of Employment.
In the
event Employee terminates employment prior to age 57 for reasons other than
being totally disabled, his entire notional account balance, valued as of the
end of the month preceding payment, shall be paid to him in a lump sum on the
first business day of the month following the date Employee attains 57 unless
(a) the independent directors of the Board of Directors, at the recommendation
of the Compensation Committee of the Board, decides to pay him in benefits
in a
lump sum prior to age 57 or (b) he terminates subsequent to a “change of
control” as defined in Employee’s Employment Agreement with the Employer. If the
Employee terminates employment subsequent to a change of control, but prior
to
age 57, his entire notional account balance shall be paid to him in a lump
sum
on the first business day of the month following the date he terminates
employment.
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ARTICLE
III: VESTING/FORFEITURE
OF BENEFITS
The
Employee shall be immediately and fully vested in all amounts credited to his
notional account pursuant to this Agreement on or after September 30, 2004.
Notwithstanding the preceding sentence, the Employee’s entire notional account
balance shall be forfeited if his employment is terminated by the Employer
for
“cause”, as defined in subparagraphs (i), (ii) or (iii) of Section 5(b) of
Employee’s Employment Agreement with the Employer. No other termination of
employment of Employee under his Employment Agreement with the Employer shall
result in a forfeiture of any amounts payable to him under this Agreement except
as otherwise expressly provided herein.
ARTICLE
IV: TERMINATION
OF EMPLOYMENT
This
Agreement shall not in any way constitute an employment agreement between
Employee and Employer and shall in no way obligate Employer to continue the
employment of Employee with Employer. This Agreement shall not limit the right
of Employer to terminate Employee’s employment with Employer in accordance with
Employee’s employment agreement with the Employer.
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ARTICLE
V: ASSIGNMENT
The
right
of the Employee to the payment of benefits under this Agreement shall not be
assigned, transferred, pledged, or encumbered. Further, said right shall not
be
subject to devise or bequest nor shall it survive the death of the Employee
for
any reason or circumstance, except as provided in Section 3 of Article II,
above.
ARTICLE
VI: LACK
OF
FIDUCIARY RELATIONSHIP
Nothing
contained in this Agreement and no action taken pursuant to the provisions
of
this Agreement shall create or be construed to create a trust of any kind,
or a
fiduciary relationship between the Employer and the Employee or any other
person. Any funds which may be invested for the purpose of fulfilling the
obligations which may arise under the provisions of this Agreement shall
continue for all purposes to be a part of the general funds of the Employer
and
no person other than the Employee shall, by virtue of the provisions of this
Agreement, have any interest in such funds. To the extent that any person
acquires a right to receive payments from the Employer under this Agreement,
such right shall be no greater than the right of any unsecured general creditor
of the Employer.
ARTICLE
VII: MODIFICATION
This
Agreement may be revised only in writing signed by the parties
hereto.
ARTICLE
VIII: GOVERNING
LAW
This
Agreement shall be construed in accordance with the laws of the Commonwealth
of
Pennsylvania.
ARTICLE
IX: MISCELLANEOUS
1. Status
of Payments.
Any
contribution credit or benefit payable under this Agreement shall not be
included for the purpose of computing benefits to which the Employee may be
entitled under any pension plan or other arrangement of the Employer for the
benefit of its employees.
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2. Interpretation.
The
Compensation Committee of the Board of Directors (the “Committee”) shall have
full power and discretionary authority to interpret, construe and administer
this Agreement and the Committee’s interpretation and construction thereof and
actions thereunder, taken by majority vote, including any valuation of the
supplemental retirement compensation amount to be paid, shall be binding and
conclusive on all persons for all purposes. No member of the Committee or member
of the Board shall be liable to any person for any action taken or omitted
in
connection with the interpretation or administration of this Agreement unless
attributable to his own willful misconduct or lack of good faith.
3. Claims
Procedure.
(a) The
Committee shall prescribe a form for the presentation of claims under the terms
of this Agreement.
(b) Upon
presentation to the Committee of the claim on the prescribed form, the Committee
shall make the determination of the validity thereof. If the determination
is
adverse to the claimant, the Committee shall furnish to the claimant within
90
days after receipt of the claim a written notice setting forth the
following:
(i) The
specific reason or reasons for the denial;
(ii) Specific
references to pertinent provisions of the Agreement on which the denial is
based;
(iii) A
description of any additional materials or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
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(iv) Appropriate
information as to the steps to be taken if the claimant wishes to submit his
or
her claim for review.
(c) In
the
event of a denial of a claim, the claimant or his or her duly authorized
representative may appeal such denial to the Committee for a full and fair
review of the adverse determination. The claimant’s request for a review must be
in writing and made to the Committee within 60 days after receipt by the
claimant of the written notification required under paragraph (b) above;
provided, however, such 60-day period shall be extended if the circumstances
so
warrant. The claimant or his or her duly authorized representative may submit
issues and comments in writing which will be given full consideration by the
Committee in its review.
(d) The
Committee may, in its sole discretion, conduct a hearing. A request for a
hearing made by the claimant will be given full consideration. At such hearing,
the claimant shall be entitled to appear and present evidence and to be
represented by counsel.
(e) The
Committee shall make a decision on a request for review not later than 60 days
after receipt of the request; provided, however, in the event of a hearing
or
other special circumstances, such decision shall be made not later than 120
days
after receipt of such request. If it is necessary to extend the period of time
for making a decision beyond 60 days after the receipt of the request, the
claimant shall be notified in writing of the extension of time prior to the
beginning of such extension.
(f) The
Committee’s decision on review shall state in writing the specific reasons and
references to the provisions of the Agreement upon which it is based. Such
decision shall be promptly provided to the claimant. If the decision on review
is not furnished in accordance with the foregoing, the claim shall be deemed
denied on review.
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4. Withholding.
Any
benefit payable under this Agreement shall be subject to applicable federal,
state and local income and employment tax withholding.
ARTICLE
X:
SECTION
409A RESTRICTIONS ON DISTRIBUTIONS
1.
Amounts
Deferred Prior to January 1, 2005.
Contributions credited to the Employee’s notional account on or before December
31, 2004, including interest subsequently credited thereon pursuant to Article
I, shall be distributable to the Employee pursuant to the terms of this
Agreement without regard to the provisions of this Article X and Section 409A
of
the Internal Revenue Code of 1986, as amended (the “Code”). The parties agree
that $218,222 was credited to the Employee’s notional account pursuant to the
Agreement as of December 31, 2004. Such amount, including interest subsequently
credited thereon pursuant to Article I, shall be hereafter referred to as the
“grandfathered account balance.”
2.
Amounts
Deferred After December 31, 2004.
Contributions credited to the Employee’s notional account after December 31,
2004, including interest subsequently credited thereon pursuant to Article
I,
are subject to the requirements of Section 409A of the Code and the regulations
and other guidance issued thereunder by the Internal Revenue Service. Such
amounts shall be referred to hereafter as the “remainder of Employee’s notional
account balance.”
3.
Retirement.
In the
event that Employee separates from service with the Employer on or after age
57,
the Employee’s grandfathered account balance and the remainder of his notional
account balance shall be paid to him in accordance with Section 1 of Article
II.
However, if any stock of the Employer is publicly-traded on an established
securities market or otherwise as of the date of Executive’s separation from
service, the remainder of Employee’s notional account balance shall be paid to
him in a lump sum on the first business day following the date that is six
months after his separation from service. The Employer shall continue to credit
interest on the remainder of the Employee’s notional account balance, in
accordance with Article I, until the date of payment to the Employee.
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4.
Disability.
In the
event that Employee separates from service with the Employer as a result of
being “disabled”, as defined in Article II, the Employee’s grandfathered account
balance and the remainder of his notional account balance shall be paid to
him
in accordance with Section 2 of Article II. However, if any stock of the
Employer is publicly-traded on an established securities market or otherwise
as
of the date of the Executive’s separation from service, the remainder of the
Employee’s notional account balance shall be paid to him in a lump sum on the
first business day of the month following the date that he has received income
replacement benefits under the Employer’s long-term disability program for three
months. The Employer shall continue to credit interest, in accordance with
Article I, on the remainder of the Employee’s notional account balance until the
date of payment to the Employee.
5.
Other
Termination of Employment.
In the
event Employee terminates employment prior to age 57 except for reasons other
than (a) death, (b) disability or (c) a change of control, as defined in
Employee’s Employment Agreement, his grandfathered account balance and the
remainder of his notional account balance shall be paid to him in accordance
with Section 4 of Article II. However, if any stock of the Employer is
publicly-traded on an established securities market or otherwise as of the
date
of the Executive’s termination of employment, the remainder of Employee’s
notional account balance shall be paid to him on the first business day
following the date that is six months after the Employee’s termination of
employment or the first business day of the month following the date the
Employee attains age 57, whichever date is later. The Employer shall continue
to
credit interest, in accordance with Article I, on the remainder of Employee’s
notional account balance until the date of payment to the Employee.
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6.
Termination
Subsequent to a Change of Control.
If the
Employee terminates employment subsequent to a “change of control,” as defined
in Employee’s Employment Agreement with the Employer, his grandfathered account
balance and the remainder of his notional account balance shall be paid to
him
in a lump sum on the first business day of the month following the date he
terminates employment. However, if any stock of the Employer (or its successor)
is publicly-traded on an established securities market or otherwise as of the
date of Executive’s termination of employment, the remainder of Employee’s
notional account balance shall be paid to him in a lump sum on the first
business day following the date that is six months after his termination of
employment. The Employer shall continue to credit interest, in accordance with
Article I, on the remainder of Employee’s notional account balance until the
date of payment to the Employee.
IN
WITNESS
WHEREOF, the parties hereto have set their hands and seals the day and
year
first
above written.
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ATTEST:
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TASTY
BAKING COMPANY
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| ________________________ |
By:____________________________
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Secretary
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WITNESS:
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| ________________________ | _______________________ | |
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Xxxxxxx
X. Xxxxx
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